Coward v. JP Morgan Chase Bank

Filing 79

ORDER signed by Judge Garland E. Burrell, Jr. on 9/17/2013 ORDERING that the 66 Findings and Recommendations are ADOPTED. Defendant's 51 Motion to Dismiss is GRANTED. Plaintiff is GRANTED fourteen (14) days to file a Fourth Amended Complaint. Plaintiff's 76 Motion to Amend is DENIED. Plaintiff's 75 Motion to Stay is DENIED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA Y. COWARD,

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No. 2:11-cv-03378-GEB-AC

Plaintiff,
v.

ORDER

J.P. MORGAN CHASE,

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Defendant.

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On

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February

2013,

recommendations

the

judge

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pending dismissal motion (ECF No. 51), in which she recommends

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the motion be granted and the action be dismissed without leave

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to amend. (See F&R’s 11:21-23, ECF No. 66.) While the F&R’s were

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pending,

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objections to the F&R’s and stated in that filing that she had

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discontinued proceeding in propria persona and was represented by

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counsel. (Pl.’s Mot. to Extend Time, ECF No. 68.) Therefore, the

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reference

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because

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Plaintiff was granted an extension to file any objections to the

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F&R’s. (Minute Order, ECF No. 70.)

to

of

the

requested

magistrate

Plaintiff’s

pro

an

However,

did

not

file

she

to

amend

her

moves

1

of

pursuant

status

Plaintiff

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extension

judge
se

concerning

filed

findings

Plaintiff

(“F&R’s”)

magistrate

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and

19,

was

Defendant’s

time

to

a

to

local

withdrawn.

objections
complaint

to
and

file

Further,

the
to

rule

F&R’s.

stay

the

1

proceedings. Defendant opposes Plaintiff’s motions.

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A.

Findings & Recommendations

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The F&R’s are adopted except for the recommendation

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that

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Defendant’s dismissal motion filed October 19, 2012, is GRANTED.

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However, Plaintiff is granted fourteen (14) days from the date on

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which this order is filed to file a Fourth Amended Complaint

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addressing the deficiencies raised in the F&R’s. Plaintiff is

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notified that failure to file an amended complaint within the

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prescribed time period could result in dismissal of this action

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with prejudice under Federal Rule of Civil Procedure (“Rule”)

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41(b).

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the

B.

action

be

dismissed

with

prejudice.

Therefore,

Motion to Amend

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Plaintiff seeks in her motion to amend her complaint,

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which she filed under Rule 15, an order granting her broader

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leave to amend her complaint than what she has been given above.

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Specifically, Plaintiff argues “that the amendment [she seeks]

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will assert a claim that arose out of the conduct, transaction,

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or

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original pleading.” (Pl.’s Mot. to Amend 1:23-25, ECF No. 76.)

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Plaintiff also indicates that she “is seeking to change or add a

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party.”

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information

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attaches a proposed amended complaint to her motion as required

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by Local Rule 137(c). See Lanier v. Fresno Unified Sch. Dist.,

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No. 1:09-cv-01779-AWI-BAM, 2013 WL 3892953, at *1 (July 25, 2013)

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(citing Waters v. Weyerhaeuser Mortg. Co., 582 F.2d 503, 507 (9th

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Cir. 1978)) (“The Court has discretion to deny a motion to amend

occurrence

(Id.

set

at

out,

1:25.)

concerning

or

attempted

However,
the

be

Plaintiff

specific

2

to

set

out,

neither

amendments

in

the

provides

sought

nor

1

for the failure to attach a proposed pleading as required by the

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local

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Inc., 656 F.3d 1034, 1043 (9th Cir. 2011) (affirming district

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court’s denial of “leave to amend where the party seeking leave

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failed to attach a proposed amended complaint in violation of

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local rules”).

rule.”);

see

also

Cervantes

v.

Countrywide

Home

Loans,

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Further, Plaintiff failed to move under Federal Rule of

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Civil Procedure 16 for amendment of the applicable provision of

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the status (pretrial scheduling) order, which is a prerequisite

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to consideration of a motion to amend under Rule 15. “Once the

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district court [files] a pretrial scheduling order pursuant to

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Federal

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timetable

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control[].” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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607 (9th Cir. 1992); see also Coleman v. Quaker Oats Co., 232

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F.3d 1271, 1294-95 (9th Cir. 2000). “Thus, [Plaintiff’s] ability

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to amend h[er] complaint [is] governed [first] by Rule 16(b), not

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Rule 15(a).” Johnson, 975 F.2d at 608.

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Rule

of

for

Civil

amending

Procedure

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pleadings[,]

which
that

establishe[s]
rule’s

a

standards

For the stated reasons, Plaintiff’s motion to amend is

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DENIED.

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C.

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Motion to Stay
Plaintiff

also

moves

“this

Court

to

exercise

its

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discretion and stay these proceedings pending the outcome of the

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[Financial Institutions Reform, Recovery, and Enforcement Act of

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1999 (“FIRREA”)] claim Plaintiff intends to file.” (Pl.’s Mot. to

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Stay 2:17-18, ECF No. 75.)

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“A

district

court

has

discretionary

power

to

stay

proceedings in its own court under Landis v. North American Co.,
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299 U.S. 248, 254 (1936).” Lockyer v. Mirant Corp., 398 F.3d

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1098, 1109 (9th Cir. 2005). “In determining whether a stay is

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appropriate, the Court is to consider ‘the possible damage which

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may result from the granting of a stay, the hardship or inequity

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which a party may suffer in being required to go forward, and the

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orderly course of justice measured in terms of the simplifying or

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complicating of issues, proof, and questions of law which could

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be expected to result from a stay.’” Nw. Coalition for Alts. to

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Pesticides v. U.S. Envtl. Prot. Agency, No. C10-1919Z, 2012 WL

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2343279, at *3 (W.D. Wash. June 20, 2012) (quoting Landis, 299

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U.S. at 254).

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As the moving party, Plaintiff “bears the burden of

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proving that a stay is warranted.” Id. (citing Clinton v. Jones,

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520 U.S. 681, 708 (1997)). However, Plaintiff does not address in

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her motion the referenced factors the court is to consider when

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deciding

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motion to stay is DENIED.

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whether

Dated:

a

stay

is

necessary.

September 17, 2013

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Therefore,

Plaintiff’s